PARISI v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

PIETRO J. PARISI, JR., :

:

Petitioner, : Civ. No. 17-1736 (NLH)

:

v. : OPINION

:

THE ATTORNEY GENERAL :

OF THE STATE OF NEW JERSEY, :

et al., :

:

Respondents. :

______________________________:

APPEARANCES:

Pietro J. Parisi, Jr.

147556C 705

Special Treatment Unit

8 Production Way

P.O. Box 905

Avenel, NJ 07001

Petitioner Pro se

Christine A. Hoffman, Gloucester County Prosecutor

Michael C. Mellon, Acting Assistant Prosecutor

Gloucester County Prosecutor’s Office

Hunter & Euclid Street

P.O. Box 623

Woodbury, NJ 08096

Counsel for Respondents

HILLMAN, District Judge

Petitioner Pietro J. Parisi, Jr., presently committed in

the Special Treatment Unit in Avenel, New Jersey is proceeding

on an amended petition for a writ of habeas corpus under 28

U.S.C. § 2254. ECF No. 4. Respondents oppose the amended

petition. ECF Nos. 11 & 26.

For the reasons stated below, the amended petition will be

denied. No certificate of appealability shall issue.

I. BACKGROUND

The facts of this case were recounted below and this Court,

affording the state court’s factual determinations the

appropriate deference, 28 U.S.C. § 2254(e)(1), reproduces the

recitation of the facts as set forth by the New Jersey Superior

Court, Appellate Division (“Appellate Division”) in its 2013

opinion affirming the Law Division’s order denying Petitioner’s

motion to withdraw his guilty pleas:1

The record shows that on March 26, 1996, defendant pled

guilty to third-degree endangering the welfare of a

child. N.J.S.A. 2C:24-4a. The conviction arose from

charges that defendant had sexual contact with a child

under the age of sixteen. Defendant received a sentence

of three years probation, conditioned on serving 364

days in the county correctional facility and compliance

with the requisite Megan’s Law2 conditions. In December

1999, defendant signed a document acknowledging that, as

part of the community supervision for life regulations,

he could not live with a minor without the permission of

1 The Appellate Division later incorporated this “detailed

recitation of defendant’s involvement with the criminal justice

system” in its opinion denying Petitioner’s postconviction

relief (“PCR”) appeal. State v. Parisi, No. A-1078-14T3, 2016

WL 6518590, at *1 (N.J. Super. Ct. App. Div. Nov. 3, 2016)

(“Parisi II”).

2 The colloquial name for New Jersey’s Registration and Community

Notification Laws, N.J.S.A. §§ 2C:7–1 to 7–11.

2

the parole board.

On January 17, 2003, defendant pled guilty to two counts

of second-degree sexual assault, N.J.S.A. 2C:14-2, and

one count of fourth-degree violation of community

supervision for life, N.J.S.A. 2C:43-6.4. The sexual

assault convictions stemmed from defendant having sexual

relations with two children under the age of sixteen.

Defendant received an aggregate sentence of eight years

in prison with four years of parole ineligibility.

Defendant continued to be subject to Megan’s Law and

community supervision for life.

On September 24, 2005, defendant filed an appeal. On

October 28, 2005, defendant filed a motion to vacate his

2003 guilty plea, contending that he did not know that

his guilty plea made him eligible for indefinite civil

commitment after he had served his sentence. After the

trial judge denied the motion on April 27, 2006,

defendant amended his pending appeal to include this

denial. We remanded the matter for a plenary hearing .

. . for a determination of whether defendant understood

that future indefinite confinement could be a possible

consequence of his plea and for a reconsideration of

defendant’s sentence pursuant to State v. Natale, 184

N.J. 458, 495-96 (2005). State v. Parisi, Docket No.

A-0582-04 (App. Div. May 23, 2007).

On September 12, 2007, the trial judge approved an

agreement between defendant and the State whereby

defendant acknowledged that he had been aware at the

time of his 2003 plea of the possibility that he could

be civilly committed and that he had been subject to

community supervision for life since his 1996 plea. The

State agreed to modify defendant’s sentence to six years

in prison with three years parole ineligibility. On May

27, 2008, defendant filed a motion to withdraw his guilty

pleas, contending that the parole board had added new

conditions to his sentence. The court denied the motion

and defendant did not appeal.

In September 2008, defendant’s son was born. Shortly

thereafter, the Division of Youth and Family Services

3

removed the infant from the custody of both parents.3

Defendant then moved to withdraw his guilty pleas4

because he was not informed that his convictions for

child endangering and sexual assault could restrict his

custody of or visitation rights to any minor child,

“except upon a showing by clear and convincing evidence

that it is in the best interest of the child.” N.J.S.A.

9:2-4.1a to b. Defendant argued that, if he had known

about this consequence, he would not have pled guilty

either time. [T]he judge denied defendant’s motion.

State v. Parisi, No. A-4901-09T3, 2013 WL 889260, at *1 (N.J.

Super. Ct. App. Div. Mar. 12, 2013) (“Parisi I”). The Appellate

Division affirmed the trial court. Id. at *5.

Petitioner filed a PCR petition on March 22, 2013. ECF No.

11-6 at 98. The PCR court held oral argument on July 24, 2014

and denied the petition without an evidentiary hearing. 3T.5

Petitioner appealed, and the Appellate Division affirmed the PCR

Court, Parisi II, 2016 WL 6518590; ECF No. 26-6. The New Jersey

Supreme Court denied certification on February 13, 2017. State

3 “The record is devoid of any documentation explaining the

reasons for the removal of the child from both the mother and

the father.” Parisi I, 2013 WL 889260, at *1 n.1.

4 “The record does not contain this motion or any supporting

certifications.” Parisi I, 2013 WL 889260, at *1 n.2.

5 1T = Post-Conviction Relief Transcript dated September 12,

2007; ECF No. 26-2.

2T = Motion to Withdraw Guilty Plea Transcript dated July 11,

2008; ECF No. 26-3.

3T = Post-Conviction Relief Transcript dated July 24, 2014; ECF

No. 26-3.

4

v. Parisi, 160 A.3d 706 (N.J. 2017) (Table); ECF No. 26-7.

Petitioner filed his original petition for habeas corpus on

March 13, 2017. ECF No. 1. The Court advised Petitioner of his

rights and obligations under Mason v. Meyers, 208

F.3d 414 (3d Cir. 2000). ECF No. 2. Petitioner filed an

amended petition on August 9, 2017. ECF No. 4. The Court

requested that Respondent file an answer limited to “the issues

of ‘in custody’ jurisdiction and timeliness.” ECF No. 6.

Respondent answered that Petitioner was “in custody” for

purposes of § 2254 and that Petitioner was “within the statute

of limitations with respect to Indictment 02-09-0544 and

Accusations 03-01-0105 and 03-01-0106 but out of time with

respect to Accusation 96—03-0144.” ECF No. 11 at 2-3.

Petitioner disputed this assessment. ECF No. 13.

On July 14, 2022, the Court concluded Petitioner’s

challenges to Accusation 96-03-144 were presumptively untimely

under 28 U.S.C. § 2244. ECF Nos. 18 & 19. The Court directed

Respondent to file a full answer to the petition and permitted

Petitioner to submit arguments in favor of equitable tolling.

ECF No. 19. Petitioner submitted equitable tolling arguments,

ECF No. 22, and Respondent submitted a new brief and exhibits in

5

opposition to the amended § 2254 petition, ECF No. 26.6

II. STANDARD OF REVIEW

Title 28 U.S.C. § 2254 permits a federal court to entertain

a petition for writ of habeas corpus on behalf of a person in

state custody pursuant to the judgment of a state court “only on

the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a).

Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), the writ shall not issue with respect to any

claim that was adjudicated on the merits by a state court unless

the adjudication of the claim

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding . . . .

28 U.S.C. § 2254(d). A state court decision is “contrary to”

6 Respondent’s new filing was filed under seal but was

unaccompanied by a motion to seal in compliance with Local Civil

Rule 5.3. ECF No. 26. The brief and exhibits contain documents

that are publicly filed on the docket as part of Respondent’s

limited answer, ECF No. 11, and upon this Court’s review do not

contain information warranting a permanent seal. Accordingly,

the Court will direct the Clerk to lift the temporary seal.

6

Supreme Court precedent “if the state court applies a rule that

contradicts the governing law set forth in [Supreme Court]

cases,” or “if the state court confronts a set of facts that are

materially indistinguishable from a decision of th[e] Court and

nevertheless arrives at a result different from [the Court’s]

precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000).

“[A] state-court decision is an unreasonable application of

clearly established [Supreme Court] precedent if it correctly

identifies the governing legal rule but applies that rule

unreasonably to the facts of a particular prisoner’s case.”

White v. Woodall, 572 U.S. 415, 426 (2014). “[A]n unreasonable

application of federal law,” however, “is different from an

incorrect application of federal law.” Harrington v. Richter,

562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410).

The Court must presume that the state court’s factual findings

are correct unless Petitioner has rebutted the presumption by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

Petitioner presents three arguments for this Court’s review:

I. Mr. Parisi was denied his right to effective

assistance of counsel and due process of law under

the Sixth and Fourteenth Amendments to the United

States Constitution when his defense counsel failed

to inform him that as a direct result of his guilty

plea he would be giving up his right to custody and

visitation to his own children.

7

II. The Lifetime consequences and social stigma

(Megan’s Law Lifetime Registration and Community

Supervision for Life) because of the Mr. Parisi’s

Strict Liability convictions violate his Eighth

Amendment right to be free from cruel and unusual

punishment. In addition, the Petitioner is

currently Civilly Committed as a sexually violent

predator due to these Strict Liability crime.

III. Mr. Parisi was denied due process of law under the

Fourteenth Amendment to the United States

Constitution when despite the Strict Liability

nature of his convictions he was subjected to

lifetime punishment (Community Supervision for

Life) and sever[e] social stigma. (Megan’s Law and

internet posting).

ECF No. 4 at 6-9 (emphasis omitted).

Initially, the Court ordered Respondent to file an answer

limited to “the issues of ‘in custody’ jurisdiction and

timeliness.” ECF No. 6. Respondent conceded that Petitioner is

“in custody” for purposes of § 2254 and asserted that Petitioner

was “within the statute of limitations with respect to

Indictment 02-09-0544 and Accusations 03-01-0105 and 03-01-0106

but out of time with respect to Accusation 96—03-0144.” ECF No.

11 at 2-3. The Court previously concluded Petitioner’s

challenges to Accusation 96-03-144 were presumptively untimely

under 28 U.S.C. § 2244. ECF Nos. 18 & 19. The Court directed

Respondent to file a full answer to the petition and permitted

Petitioner to submit arguments in favor of equitable tolling.

ECF No. 19.

8

Respondent’s subsequent filing appears to withdraw the

claim that the challenges to Accusation 96-03-144 are untimely.

See ECF No. 26 at 3 (“Admitted as to Accusation 96-03-144. The

application is timely.”). “[B]ecause the AEDPA limitations

period is subject to equitable modifications such as tolling, it

is also subject to other non-jurisdictional, equitable

considerations, such as waiver.” Robinson v. Johnson, 313 F.3d

128, 134 (3d Cir. 2002). As Respondent has withdrawn its

statute of limitations defense to Accusation 96-03-144, the

Court will not dismiss those claims as time barred and will

address the merits.

A. Exhaustion

Respondent argues Petitioner failed to exhaust Grounds Two

and Three. ECF No. 11 at 10-11. “[F]ederal habeas review

cannot serve as ‘a substitute for ordinary error correction

through appeal.’ The writ of habeas corpus is an ‘extraordinary

remedy’ that guards only against ‘extreme malfunctions in the

state criminal justice systems.’” Shinn v. Ramirez, 142 S. Ct.

1718, 1731 (2022) (quoting Harrington v. Richter, 562 U.S. 86,

102–03 (2011)). Before seeking relief in federal court, a state

prisoner must “exhaust[] the remedies available in the courts of

the State.” 28 U.S.C. § 2254(b)(1)(A). “Ordinarily, a state

prisoner satisfies this exhaustion requirement by raising his

9

federal claim before the state courts in accordance with state

procedures.” Shinn, 142 S. Ct. at 1732. This means “state

prisoners must give the state courts one full opportunity to

resolve any constitutional issues by invoking one complete round

of the State’s established appellate review process,” including

a petition for discretionary review before the State’s highest

court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

Petitioner raised all three claims presently before the

Court in his March 2013 PCR petition. ECF No. 11-6 at 98-101.

He also raised them before the Appellate Division, Parisi II,

2016 WL 6518590, and before the New Jersey Supreme Court, ECF

No. 11-4 at 98. Accordingly, Petitioner presented his claims to

all levels of the New Jersey state courts and exhausted his

claims.

B. Ineffective Assistance of Counsel

Petitioner argues in his first claim that he was denied his

right to effective assistance of counsel and due process of law

under the Sixth and Fourteenth Amendments to the United States

Constitution because he was not informed at his original 2003

plea or at the 2007 resentencing that a state statute, N.J.S.A.

§ 9:2-4.1, would terminate his parental rights.7 “Defense

7 The statute currently reads in relevant part: “Notwithstanding

any provision of law to the contrary, a person convicted of

10

counsel had a duty to inform the Petitioner that as a direct

result of his plea he would forfeit his right to have custody

and visitation with his own children. Had defense counsel made

the Petitioner aware; he would not have pled guilty.” ECF No. 4

at 6. Petitioner submitted to the PCR court “the certification

of his attorney who represented him at the plea hearing and who

had given him the wrong advice. Although counsel does not admit

wrongdoing, he does certify that during the plea negotiations,

the defendant made it clear to counsel that it was his desire to

be with his children.” ECF No. 11-4 at 34.8 “Counsel certified

his belief that the defendant would not have pleaded guilty if

he had know [sic] that he would be restricted from having

custody to or visitation rights with his children.” Id.9

“Defendants have a Sixth Amendment right to counsel, a

sexual assault under N.J.S. 2C:14–2 shall not be awarded the

custody of or visitation rights to any minor child, including a

minor child who was born as a result of or was the victim of the

sexual assault, except upon a showing by clear and convincing

evidence that it is in the best interest of the child for

custody or visitation rights to be awarded.” N.J.S.A. 9:2-

4.1(a).

8 Neither party submitted this certification to the Court. The

Court accepts Petitioner’s representation of what the

certification stated.

9 “Mr. Parisi had three children before being released from

prison.” ECF No. 11-3 at 133. The child born in 2008 was

Petitioner’s fourth child, and there is nothing in the record

indicating that he was born as a result of an assault.

11

right that extends to the plea-bargaining process. During plea

negotiations defendants are ‘entitled to the effective

assistance of competent counsel.’” Lafler v. Cooper, 566 U.S.

156, 162 (2012) (quoting McMann v. Richardson, 397 U.S. 759, 771

(1970)). The state courts correctly identified Strickland v.

Washington, 466 U.S. 668 (1984) as the governing standard for

ineffective assistance of counsel claims. See Parisi II, 2016

WL 6518590, at *1. To succeed on his claim, Petitioner must

“show that counsel’s representation fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688. He

must then show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

“In the context of guilty pleas, the first half of the

Strickland v. Washington test is nothing more than a restatement

of the standard of attorney competence . . . .” Hill v.

Lockhart, 474 U.S. 52, 58 (1985). “The second, or ‘prejudice,’

requirement, on the other hand, focuses on whether counsel’s

constitutionally ineffective performance affected the outcome of

the plea process.” Id. at 59. “In other words, in order to

satisfy the ‘prejudice’ requirement, the defendant must show

that there is a reasonable probability that, but for counsel’s

12

errors, he would not have pleaded guilty and would have insisted

on going to trial.” Id.

Furthermore, “[w]hen a federal habeas petition under § 2254

is based upon an ineffective assistance of counsel claim, ‘[t]he

pivotal question is whether the state court’s application of the

Strickland standard was unreasonable,’ which ‘is different from

asking whether defense counsel’s performance fell below

Strickland’s standard.’” Grant v. Lockett, 709 F.3d 224, 232

(3d Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101

(2011)). “Federal habeas review of ineffective assistance of

counsel claims is thus ‘doubly deferential.’” Id. (quoting

Cullen v. Pinholster, 563 U.S. 170, 190 (2011)). “When §

2254(d) applies, the question is not whether counsel’s actions

were reasonable. The question is whether there is any

reasonable argument that counsel satisfied Strickland’s

deferential standard.” Harrington, 562 U.S. at 105.

In denying the PCR petition, the PCR court relied heavily

on its prior order that denied Petitioner’s motion to vacate his

guilty pleas and the 2013 Appellate Division decision affirming

that denial. See 3T28:7-10 (citing Parisi I, 2013 WL 889260).

The PCR court noted, as it had when it denied Petitioner’s 2009

motion to withdraw, that “[i]n December 1999, defendant signed a

document acknowledging that . . . as part of his community

13

supervision for life, he could not live with a minor without the

permission of the Parole Board.” 3T:30:18-21. The PCR court

noted N.J.S.A. § 9:2–4.1 “provided before its amendment, that a

person convicted of a sexual assault could not be awarded or

visitation [sic] of his born – as a result of a victim of sexual

assault, unless [it] was in the child’s best interests.”

3T38:5-10; see also Parisi I, 2013 WL 889260, at *3 (“When

N.J.S.A. 9:2–4.1 was first enacted in 1995 . . . it simply

provided that a person convicted of sexual assault of a minor,

N.J.S.A. 2C:14–2, could not be awarded the custody or visitation

rights of a minor child who was born as a result of, or was the

victim of, a sexual assault, unless it was in the child’s best

interest.”). The statute was amended to its current language in

2000. 3T38:11-20.

Additionally, the Legislature added an identical

provision for a person convicted of criminal sexual

contact, N.J.S.A. 2C:14–3, or endangering the welfare of

a child, N.J.S.A. 2C:24–4. N.J.S.A. 9:2–4.1b. This

prohibition did not “by itself terminate the parental

rights of the person denied visitation or custody” and

the parent remains obligated to support the child.

N.J.S.A. 9:2–4.1c.

Parisi I, 2013 WL 889260, at *4. The PCR court cited the

Appellate Division’s 2013 conclusion that “when defendant pled

guilty to child endangerment in 1996, [N.J.S.A. § 9:2–4.1] did –

did not affect his custody or visitation rights; and neither the

14

Court, nor the State, could have predicted a change in the law.”

3T38:21-25 (citing Parisi I, 2013 WL 889260, at *4). “Defendant

was not misinformed about the custody and visitation

consequences of the initial Plea. Nevertheless, when the law

was amended, defendant, by virtue of his child endangering

conviction, became subject to its provisions.” 3T38:25 to 39:5;

Parisi I, 2013 WL 889260, at *4.

The PCR court continued to adopt the Appellate Division’s

reasoning, concluding that “[i]n 2003, when defendant pled to

two sexual assaults, the custody and visitation restrictions of

[N.J.S.A. 9:2–4.1] already applied to him because of his 1996

conviction.” 3T39:6-9. “It is undisputed that at the time of

this Plea, and when he entered the Plea in 2007, no one provided

defendant with information about these restrictions. However,

since the custody and visitation restrictions had already been

triggered by the 1996 conviction, there was no additional

consequences of the second Plea.” 3T39:9-16; Parisi I, 2013 WL

889260, at *4.

In addressing the ineffective assistance of counsel claim,

the PCR court noted that “the consequence to which defendant

alleges he was not informed is not nearly as dire or dispositive

as he claims” because N.J.S.A. § 9:2–4.1 “does not terminate

parental rights; it merely requires the defendant show, by clear

15

and convincing evidence, that custody would be in the best

interest of the child.” 3T46:18-24. “Even when parents have

not been convicted of any crime, custodial decisions require a

showing by a preponderance of the evidence that custody would be

in the best interest of the child. There is a raising of the

standard here; however, it’s hardly the immediate and dramatic

consequence that the defendant claims.” 3T46:25 to 47:3.

The PCR court also found that “more importantly, the

defendant cannot credibility claim that he would not have

accepted the Plea Bargain. . . . . If he had been aware of the

custodial implications, as the Appellate Division panel stated

when faced with the issue under N.J.S.A. . . . 9:2–4.1.”

3T47:7-13. “N.J.S.A. 9:2–4.1 applies to defendant whether he

had pled guilty to these crimes or not, because of his 1996

conviction. This is the result of an amendment to the statute

in 2000. Defendant cannot claim he should have been informed of

it before entering the Guilty Plea in 1996.” 3T47:13-19. See

also Parisi I, 2013 WL 889260, at * 4 (“Defendant is unable to

show prejudice by his lack of information before entering his

plea in 2003 because whatever the ultimate consequences of

N.J.S.A. 9:2–4.1, they were produced by the original plea in

1996.”). “I also do not find it reasonable to presume that the

defendant would not have accepted the Plea Agreement, based on

16

the dire consequences and penalties which he would have been

subjected.” 3T47:23 to 48:1.

“[I]n making litigation decisions, ‘there is no general

duty on the part of defense counsel to anticipate changes in the

law.’” Sistrunk v. Vaughn, 96 F.3d 666, 670–71(3d Cir. 1996)

(quoting Government of the Virgin Islands v. Forte, 865 F.2d 59,

62 (3d Cir. 1989)). N.J.S.A. § 9:2–4.1 did not apply to

Petitioner at the time of his 1996 guilty plea, which Petitioner

conceded in his 2013 appeal. See ECF No. 11-6 at 62 (“N.J.S.A.

9:2–4.1 did not pertain to Mr. Parisi when he entered a guilty

plea to endangerment in 1996.”). Trial counsel was not

obligated to anticipate an amendment to the statute in 2000.

Parisi I, 2013 WL 889260, at * 4. From there, the state courts

reasonably applied Strickland when they concluded that there was

not a reasonable probability that Petitioner would have insisted

on going to trial had he known about the amendment prior to his

2003 or 2007 pleas.

In § 2254 proceedings, “[t]he question ‘is not whether a

federal court believes the state court’s determination’ under

the Strickland standard ‘was incorrect but whether that

determination was unreasonable — a substantially higher

threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

See also Harrington v. Richter, 562 U.S. 86, 101 (2011) (“The

17

pivotal question is whether the state court’s application of the

Strickland standard was unreasonable. This is different from

asking whether defense counsel’s performance fell below

Strickland’s standard.”). “The term unreasonable refers not to

ordinary error or even to circumstances where the petitioner

offers a strong case for relief, but rather to extreme

malfunctions in the state criminal justice system.” Mays v.

Hines, 141 S. Ct. 1145, 1149 (2021) (per curiam) (cleaned up).

Accordingly, “[w]hen a state court has applied clearly

established federal law to reasonably determined facts in the

process of adjudicating a claim on the merits, a federal habeas

court may not disturb the state court’s decision unless its

error lies ‘beyond any possibility for fairminded

disagreement.’” Shinn v. Kayer, 141 S. Ct. 517, 520 (2020)

(quoting Harrington, 562 U.S. at 103).

Petitioner’s custody and visitation rights would have been

curtailed under N.J.S.A. § 9:2–4.1 regardless of whether

Petitioner pled guilty in 2003 or 2007. The state courts

concluded that there was not a reasonable likelihood that

Petitioner would have proceeded to trial if he had known about

N.J.S.A. § 9:2–4.1’s amendment beforehand because the amendment

was already appliable; the horse was already out of the barn.

In other words, it is not reasonable to claim that one would

18

take a chance at trial to avoid a result of a guilty plea when

that result already applied because of a prior conviction. The

fact that Petitioner signed the original community supervision

for life conditions in 1999 “acknowledging that, as part of the

community supervision for life regulations, he could not live

with a minor without the permission of the parole board” further

supports the state courts’ conclusions. See also ECF No. 11-3

at 41 (October 26, 2009 opinion denying motion to withdraw pleas

as “although it was not specifically spelled out that Mr. Parisi

would lose custody of and even visitation with his biological

child, it is clear that defendant has been on alert for the past

ten years that residing with a minor child would always be an

issue.”). The state courts reasonably applied Strickland,

precluding federal habeas relief.

C. Megan’s Law Challenges

Petitioner argues that Megan’s Law lifetime registration

violates his Eighth Amendment right to be free from cruel and

unusual punishment as well as his Fourteenth Amendment due

process right. “The Petitioner’s convictions amount to the

conduct of statutory rape. No violence or coercion was ever

alleged. Under New Jersey law, Furthermore, [sic] the

Petitioner could not submit evidence that he had a reasonable

belief that his victims were above the age stated for the

19

crime.” ECF No. 4 at 8. “Courts have repeatedly held that

strict liability violates Due Process when the consequences and

social stigma are severe.” Id. at 10. “New Jersey’s ‘Statutory

Rape’ law imparts strict criminal liability in reference to the

Petitioner’s knowledge of the victim’s age. While this may be

permissible to impose a term of imprisonment, the severe social

stigma and consequences of other mandatory sentencing provisions

causes this to run afoul of the Fourteenth Amendment.” Id.

The state courts rejected these arguments on the merits.

See 3T43:12 to 45:6; Parisi II, 2016 WL 6518590, at *1

(affirming “substantially for the reasons expressed by” the PCR

court). Petitioner argues that “[t]he State Courts chose not to

give any real consideration to Mr. Parisi’s Eighth and

Fourteenth Amendment claims.” ECF No. 13 at 17. “The State

Courts failure to address these issues in light of strict

liability in any real way leaves this Court open to review them

de novo.” Id. at 18. However, AEDPA deference applies even

when there has been a summary denial. Cullen v. Pinholster, 563

U.S. 170, 187 (2011) (citation omitted). The Court must apply

the appropriate AEDPA deference. “In these circumstances,

[Petitioner] can satisfy the ‘unreasonable application’ prong of

§ 2254(d)(1) only by showing that ‘there was no reasonable

basis’ for the” state courts’ decision. Id. (quoting Harrington

20

v. Richter, 562 U.S. 86, 98 (2011)).

Petitioner cites no federal law supporting his arguments,

conceding that his “claims are novel in the sense that he could

find no case law where any Court, Federal or State has addressed

the issues of sex offender registration as applied to a strict

liability crime.” ECF No. 13 at 17. He argues:

Megan’s Law and Community Supervision for Life impart a

level of culpability that is not required for

conviction. Mr. Parisi has never argued that he should

not have gone to prison for his crimes. He has always

believed that he should have know [sic] better than to

have sexual relations with someone who’s age he had not

ascertained assuredly. That said he should not be

punished like a predator that was looking to victimize

an underage child. This imputation of intent is what

violates his right to Due Process. In Mr. Parisi’s

1996, case as soon as he found out that he had violated

the law with an underage partner he attempted to turn

himself in to police. In Mr. Parisi’s 2003, case the

victim admits that she told Mr. Parisi that she was 18

and that when he found out the truth he stopped seeing

her.

Id. at 13. The PCR court rejected Petitioner’s characterization

of his crimes, noting that he “admitted in multiple instances

that he had sex with underaged female, ultimately resulting in

impregnating her.” 3T43:23-25. “Despite his [contention] that

he had a reasonable belief at the time that his partner was

already reached the age of consent, this Court does not find

that his conduct was remotely passive or unworthy of blame.”

3T43:25 to 44:4. The PCR court further noted that Megan’s Law

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had previously survived constitutional challenges in the New

Jersey Supreme Court. 3T44:9-18 (citing Doe v. Portiz, 662 A.2d

367 (N.J. 1995)).

“The Eighth Amendment prohibits the infliction of ‘cruel

and unusual punishments.’ In the context of a challenge to a

sex offender registration requirement, the Court should focus on

whether the registration requirement ‘may be categorized as

“punishment.”’” Farmer v. Harman, No. 4:18-CV-02216, 2021 WL

2222720, at *3 (M.D. Pa. June 2, 2021) (quoting U.S. Const.

Amend. XIII; Artway v. Attorney General of N.J., 876 F. Supp.

666, 678 (D.N.J. 1995)). See also Willman v. Att’y Gen. of

United States, 972 F.3d 819, 825 (6th Cir. 2020) (“[T]o violate

the cruel and unusual punishment prohibition, a sanction must be

a punishment.” (emphasis in original)).

The New Jersey Supreme Court “has consistently regarded the

Megan’s Law registration requirement as a legislatively imposed

regulatory consequence of committing a sex offense . . . .”

State v. Brown, 243 A.3d 1233, 1235 (N.J. 2021). “[T]he

legislative purpose of Megan’s Law was to identify potential

recidivists and alert the public when necessary for the public

safety, and to help prevent and promptly resolve incidents

involving sexual abuse and missing persons.” E.B. v. Verniero,

119 F.3d 1077, 1097 (3d Cir. 1997). See also State v. Perez,

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106 A.3d 1212 (N.J. 2015) (describing the registration

requirement as an “administrative obligation” distinct from a

punitive consequence). This is consistent with federal law.

The Third Circuit has concluded that the registration

portions of Megan’s Law are not punitive for purposes of the ex

post facto, bill of attainder, double jeopardy, equal

protection, or due process clauses. Artway v. Attorney General,

81 F.3d 1235 (3d Cir. 1996). It later concluded that the

notification provisions of Megan’s Law were not punitive for

purposes of the double jeopardy or ex post facto clauses, E.B.,

119 F.3d 1077,10 and that New Jersey’s Sexually Violent Predator

Act was not punitive for Eighth Amendment purposes, Conover v.

Main, 601 F. App’x 112, 115 (3d Cir. 2015) (“Because the SVPA is

10 The Third Circuit rejected arguments that social stigma

associated with Megan’s Law notifications transformed the

requirements into punishments. “Dissemination of information

about criminal activity has always held the potential for

substantial negative consequences for those involved in that

activity. Dissemination of such information in and of itself,

however, has never been regarded as punishment when done in

furtherance of a legitimate governmental interest.” E.B. v.

Verniero, 119 F.3d 1077, 1099–100 (3d Cir. 1997). “[T]he

Supreme Court has said that ‘restrictive measures on sex

offenders adjudged to be dangerous is “a legitimate nonpunitive

governmental objective and has been historically so regarded.”‘”

Bakran v. Sec’y, United States Dep’t of Homeland Sec., 894 F.3d

557, 566 n.8 (3d Cir. 2018) (quoting Smith v. Doe, 538 U.S. 84,

93 (2003); Kansas v. Hendricks, 521 U.S. 346, 363 (1997)).

23

not ‘punitive’ in nature, ‘the law is not a “cruel and unusual

punishment” in violation of the Eighth Amendment.’”). See also

A.A. ex rel. M.M. v. New Jersey, 341 F.3d 206, 214 (3d Cir.

2003) (“[T]he State’s compelling interest in preventing sex

offenses substantially outweighs any interest the Registrants

may have in not having public – yet scattered –information

compiled.”).

The Court is persuaded by the weight of authority that

Megan’s Law’s registration requirements are not “punishment”

within the meaning of the Eighth Amendment. See Cutshall v.

Sundquist, 193 F.3d 466, 477 (6th Cir. 1999) (“We have already

concluded that the [Tennessee Sex Offender Registration and

Monitoring Act] does not impose punishment; it is regulatory in

nature. Therefore, it does not violate the Eighth Amendment’s

prohibition on cruel and unusual punishment.”); Farmer v.

Harman, No. 4:18-CV-02216, 2021 WL 2222720, at *3 (M.D. Pa. June

2, 2021) (“It would stand to reason, then, that . . .

registration for being a sex offender is likewise not

punishment.”).

Petitioner asks the Court to find Megan’s Law registration

to be punitive as applied to his “strict liability” crimes. “An

Act, found to be civil, cannot be deemed punitive ‘as applied’

to a single individual in violation of the Double Jeopardy and

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Ex Post Facto Clauses and provide cause for release.” Seling v.

Young, 531 U.S. 250, 267 (2001). Courts have construed Seling

as extending to Eighth Amendment challenges. See Conover, 601

F. App’x at 115; Hydrick v. Hunter, 500 F.3d 978, 994 (9th Cir.

2007) (“[T]his ‘punitive as applied’ argument is foreclosed by

Seling.”), vacated on other grounds by 556 U.S. 1256 (2009);

Turay v. Seling, 100 F. App’x 606, 608 (9th Cir. 2004) (“For the

same reasons given by the Court [in Seling], ‘as applied’ Eighth

Amendment and due process challenges must also fail when brought

as habeas grounds.”).

The New Jersey Supreme Court has consistently found the

Megan’s Law registration requirement to be civil in nature, and

the weight of federal authority agrees. Therefore, Petitioner

may not argue that the registration requirements are punishment

“as applied” to him. His “as applied” Due Process challenge

must also fail. The state courts’ decisions are neither

unreasonable applications of federal law, nor are they

unreasonable in light of the evidence in the state court record.

D. Community Supervision for Life

Petitioner extends his Eighth Amendment and Fourteenth

Amendment challenges to the imposition of community supervision

for life as part of his sentences. See, e.g., ECF No. 13 at 18

(“While Mr. Parisi’s conduct (20 years) ago was morally

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questionable, it did not display the predatory behavior from

which Megan’s Law and Community Supervision for Life were

created.”). “‘Community supervision for life and its corollary

parole supervision for life are merely indefinite forms of

parole’ and are also classified as punishment.” State v.

Hester, 186 A.3d 236, 243 (N.J. 2018) (quoting Riley v. New

Jersey State Parole Bd., 98 A.3d 544, 555 (N.J. 2014)).

Accordingly, the Eighth Amendment applies.

The Eighth Amendment, which forbids cruel and unusual

punishments, contains a ‘narrow proportionality principle’ that

‘applies to noncapital sentences.’” Ewing v. California, 538

U.S. 11, 20 (2003) (citations omitted). “A court must consider

three proportionality factors when evaluating Eighth Amendment

challenges: (1) the gravity of the offense and the harshness of

the penalty; (2) the sentences imposed on other criminals in the

same jurisdiction; and (3) the sentences imposed for commission

of the same crime in other jurisdictions.” United States v.

Burnett, 773 F.3d 122, 136 (3d Cir. 2014) (citing Solem v. Helm,

463 U.S. 277, 290-92 (1983)). “In conducting this analysis, a

court grants substantial deference to legislative decisions

regarding punishments for crimes.” Id.

The PCR court rejected Petitioner’s Eighth Amendment

argument, noting that “[s]upervision for life is required – is a

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required part of a sentence for the offenses that defendant has

pled guilty to . . . . The Court does not pretend to carve out

an exception from that. I don’t find that’s appropriate.”

3T44:23 to 45:3. “The Eighth Amendment only forbids sentences

that are ‘grossly disproportionate’ for a conviction for the

crime involved.” Rollins v. Slaughter, No. 19-13390, 2022 WL

2358387, at *17 (D.N.J. June 30, 2022). “Generally, a sentence

within the limits imposed by statute is neither excessive nor

cruel and unusual under the Eighth Amendment.” United States v.

Miknevich, 638 F.3d 178, 186 (3d Cir. 2011).

In 1996, Petitioner pled guilty to third-degree endangering

the welfare of a child, N.J.S.A. § 2C:24-4(a). He pled guilty

to two counts of second-degree sexual assault, N.J.S.A. § 2C:14-

2, in 2003. Both crimes have community supervision for life as

part of their sentences. N.J.S.A. § 2C:43-6.4. “If the

petitioner fails to demonstrate a gross imbalance between the

crime and the sentence, a court’s analysis of an Eighth

Amendment challenge ends.” Rollins, 2022 WL 2358387, at *17.

“Thus, although the Appellate Division addressed Petitioner’s

sentencing claims under the lens of state law, its reasoning was

neither contrary to, nor an unreasonable application of, clearly

established federal law.” Id. at *18.

Petitioner’s Due Process claim also fails. “In December

27

1999, defendant signed a document acknowledging that, as part of

the community supervision for life regulations, he could not

live with a minor without the permission of the parole board.”

Parisi I, 2013 WL 889260, at *1. At his resentencing in 2007,

Petitioner stated under oath “that he had been aware at the time

of his 2003 plea of the possibility that he could be civilly

committed and that he had been subject to community supervision

for life since his 1996 plea.” Id.; see also 1T11:8-15.

Petitioner has been aware of the community supervision portion

of his sentences since 1996, and his disagreement with the New

Jersey Legislature’s decision to require community supervision

for life as part of the sentence for his crimes does not rise to

the level of a due process violation. The state courts’

decisions are neither contrary to, nor an unreasonable

application of, clearly established federal law. Accordingly,

Petitioner is not entitled to habeas relief.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), a petitioner may not

appeal from a final order in a habeas proceeding where that

petitioner’s detention arises out of his state court conviction

unless he has “made a substantial showing of the denial of a

constitutional right.” “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the

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district court’s resolution of his constitutional claims or that

jurists could conclude that the issues presented here are

adequate to deserve encouragement to proceed further.” Miller-

El v. Cockrell, 537 U.S. 322, 327 (2003).

For the reasons expressed above, Petitioner has failed to

make a substantial showing that he was denied a constitutional

right. As jurists of reason could not disagree with this

Court’s resolution of the claims, the Court shall deny

Petitioner a certificate of appealability.

V. CONCLUSION

For the above reasons, the Court will deny the amended

habeas corpus petition. A certificate of appealability shall

not issue.

An appropriate Order follows.

Dated: January 30, 2023 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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